There was a moment late in the confirmation hearings for Supreme Court nominee Samuel Alito that perfectly defined the difference between political conservatives and liberals and the way they view the role of the courts.
Unlike some of the hearing’s earlier, arcane exchanges, this one was quite easy to understand.
Sen. Charles Schumer, D-N.Y., wanted to know if Alito would honor what he called the plain language of the Constitution. For example, he asked if Alito thought it would be possible for Congress to pass a law that would prevent babies born to illegal immigrants in the United States from claiming automatic U.S. citizenship.
Schumer noted with some disgust that some members of Congress wanted to pass just such a law, and he demanded to know whether Alito thought there was any way such a statute could be constitutional.
Alito refused to take the bait. He calmly reminded Schumer that there is a controversy over that question, and that it would therefore be inappropriate for him to comment further.
Schumer was incredulous, suggesting the language of the Constitution, in his opinion, is so unambiguous that it can have only one interpretation.
Alito was equally adamant, insisting that the issue hasn’t been finally decided and that it might one day again come before the high court.
The exchange vividly demonstrates why Schumer and many of his fellow Democrats on the Senate Judiciary Committee are likely to vote against Alito’s confirmation next week. They are scandalized that Alito doesn’t readily accept their rather self-serving, nakedly political view of the law.
Put another way, the idea that Alito might actually maintain an open mind, that he might be willing to reserve judgment until he has reviewed the facts and the law pertaining to a specific case, scares them witless.
Political conservatives, by contrast, are thrilled by the expression of these same judicial traits.
The fact is, the citizenship clause of the 14th Amendment has been a source of some controversy since its adoption following the Civil War. It reads in part: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.”
It sounds simple enough, but that clause has already provoked important cases. It is likely, given the presence in the United States of an estimated 11 million illegal immigrants, that it will spawn future controversies as well.
At the time of its passage, the chief sponsor, Sen. Jacob Merritt Howard of Michigan, said that “this will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons.”
An important Supreme Court decision in 1898 involving a Chinese man held that he was a citizen of the United States, but that case did not directly deal with the issue of births to illegal immigrants or give much attention to what is meant by the phrase “subject to the jurisdiction thereof.”
Two later Supreme Court cases did deal with when and whether Congress could deprive someone of citizenship, for example, when that citizen swears allegiance to another country.
This subject is also far from resolved, especially because many nations – including Mexico – not only allow but encourage dual citizenship. For example, Mexican immigrants living in the United States are encouraged by the Mexican government to think of themselves as “Mexicans living north of the border.”
Understandably, there is some interest in Congress on what steps, if any, might be taken to reduce the dramatic increase in dual citizenship. Pro-immigration groups predictably continue to insist, along with Schumer, that there can be only one political outcome.
Still, it is not too wild a possibility that one day Congress will address these issues anew, and that the law or laws it approves will be reviewed by the nation’s highest court.
If and when that happens, it will be a comfort that Samuel Alito is on that court, and that he will be guided by the facts and the law of a particular case. If that prospect makes Sen. Schumer unhappy, so much the better.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
